After you have watched the Suspension of Nurse Kevin Video, assume you are the arbitrator hearing this case.Write a brief essay (500 word minimum) explaining your decision in this case and the rationale behind your decision. Address in your opinion, the arguments management and the union made in this case. Explain why you decided the case the way you did by analyzing each argument and the counter arguments.RubricArbitration Decision (2)Arbitration Decision (2)CriteriaRatingsPtsThis criterion is linked to a Learning OutcomeStatement of FactsStudent provides a clear summary of all pertinent facts.25.0 ptsOutstanding20.0 ptsSatisfactory15.0 ptsNeeds Improvement25.0 ptsThis criterion is linked to a Learning OutcomeSummary of the ArgumentsStudent provides a comprehensive summary of the arguments made by both management and the union.25.0 ptsOutstanding20.0 ptsSatisfactory15.0 ptsNeeds Improvement25.0 ptsThis criterion is linked to a Learning OutcomeDecision and RationaleStudent comes to a decision. Expression of the decision is clear and supported by rationale based on referenced from the course materials.40.0 ptsOutstanding32.0 ptsSatisfactory24.0 ptsNeeds Improvement40.0 ptsThis criterion is linked to a Learning OutcomeUses Proper Format and GrammarReflects adherence to APA style and format.10.0 ptsOutstanding8.0 ptsSatisfactory6.0 ptsNeeds Improvement10.0 ptsTotal Points: 100.0
suspension_of_nurse_kevin.pdf

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(NARRATOR) Labor arbitration is the process by which unions and employers resolve workplace disputes.
Rather than resort to expensive and time-consuming litigation or costly work stoppages, most collective
bargaining agreements contain a grievance and arbitration procedure. The process starts when an employee or a
union files a grievance protesting an alleged contract violation.
The union and the employer try to resolve the grievance through meetings with various levels of union
leadership and management representatives. If the parties cannot reach an agreement, they turn to binding
arbitration. The parties mutually select an impartial arbitrator who, after hearing evidence and argument, will
issue a final and binding decision.
This film depicts one such arbitration case. The issues presented here typically arise in many arbitration cases. It
also follows the normal sequence of an arbitration hearing.
Some hearings extend far longer than the one you will see. Cases can take a half day, a full day, or sometimes
multiple days. However, the goal of arbitration is to provide unions, employees, and employers with an
expedited and efficient method of dispute resolution which allows for minimal disruption in the workplace.
Today’s case focuses on a grievance filed by the union on behalf of a nurse in a local hospital. The hearing is
about to start.
–Good morning.
Hi. Good to see you again.
–Good to see you.
–Thanks for being here.
Sure. Sure.
–You came in OK?
They had a great dinner last night.
–Yeah?
Yeah, good company.
–Any traffic jams on the way here you had to deal with?
No, not at all. No, it was fine.
–Good.
Why don’t we get started with the arbitration, all right?
–Very well.
(TRUE) We’re going to get started now. Good morning. My name’s Walter True. I’m the impartial arbitrator
appointed to hear this case. I come here today without prior knowledge of the facts or the issues in the case, but
I’m sure the parties will educate me as we go along. I’d like to start out by marking some joint exhibits.
(DAVIS) OK. So we have the collective bargaining agreement as Joint 1?
(W) Yes.
(D) OK.
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(W) Thank you.
(D) That’s it?
(W) Mm-hm.
(T) Mm-hm.
(D) And Joint 2, the grievance package?
(W) Yes.
(D) OK.
(T) OK, thank you.
(TRUE) All right, I see from the grievance that this is a suspension case. Can the parties agree that the issue will
be– was the grievance suspended for just cause? If not, what shall be the remedy?
(D) So agreed.
(W) Correct.
(T) All right, thank you. Then, at this point in the case, it’s the employer’s burden. And the employer will go
first. So, when you’re ready to make an opening statement, feel free.
(D) I’m ready.
(T) OK.
(DAVIS) Good morning. My name is Doreen Davis. And I am the attorney for Nittany Regional Medical Center.
The case that’s before you today involves a one-week suspension of the grievant, Kevin Hyer. He was suspended
about February 15.
He’s been employed at the Nittany Regional Medical Center for about three years. And he is a registered nurse.
And, of course, the Nittany Regional Medical Center is an acute care hospital. The grievant worked on a postoperative floor where patients come after having serious surgeries.
The case involves two separate violations by the grievant. The first is that he refused a lawful and direct order
from his immediate supervisor to move a patient from a gurney to a bed following an operative procedure. On
this particular day, and this particular patient, the RN in question, the grievant here, absolutely refused to move
that patient and, instead, decided to punch out and go home.
The second violation, in the hospital’s mind, is the fact that he neglected this patient. The patient was, as I said,
lying on a gurney in a hallway trying to, of course, get back to the room. And, because of the antics of this
grievant, the patient had to sit for an inordinate amount of time and wait to be put back into his bed.
It’s the hospital’s position that either of these violations, let alone both combined, do constitute just cause for
what became a five-day suspension. In fact, truth be known, we believe that it could have justified even higher
discipline, such as termination. But the hospital determined to give him only a five-day suspension.
Why did the grievant refuse to do this particular duty, which everyone acknowledges is a legitimate duty for
RNs? Not only the grievant, but the other RNs on the floor, on a daily basis, do this many times a day. We don’t
know. We suspect he was trying to make a statement of some sort. You’ll hear that he was a shop steward on the
floor.
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But we do know that he left a patient terribly uncomfortable, writhing in pain, on a gurney, which is totally
unacceptable and, obviously, goes right to the core mission of the Nittany Regional Medical Center. We simply
cannot allow our health care professionals to treat patients in this manner. And we cannot allow them to refuse
direct orders of their supervisor. We’re confident, after you’ve heard all the evidence, that you will agree with us
and that you will deny the grievance. Thank you.
(T) OK. Thank you, very much.
Does the union want to make an opening statement at this time?
(WHITEHEAD) Yes, thank you. My name is Paul Whitehead. I’m counsel for the union, representing the
grievant, Kevin Hyer.
He’s been a nurse for seven years, three of them at this employer, Nittany Regional. And, in addition to being a
nurse on the surgical ward, he’s also the union steward: the person in charge of enforcing the contract, filing
grievances, et cetera, on this ward.
As you’ve heard, his job involves lifting. And the hospital treats this case like there’s some sort of mystery about
why the incident on February 15 occurred. And we’re quite surprised by that.
Mr. Hyer suffers from a back problem. And it affects his ability, from time to time, to lift patients. Now, before
we get to the key day in question, about Mr. Hyer generally, I’d like you to note you’re probably going to hear
the hospital say some very critical things about him.
We want to be real clear, as the union: We believe that his disciplinary record up to the date of February 15, the
key day in question, was absolutely clean. You’re going to hear conflicting testimony about this. Please expect
that.
The hospital contends that they had given him, in what is known as the “progressive discipline system” in our
labor agreement, an oral warning and a written warning on events that came along well before February 15. We
contest that. We say he did not receive those. And that suddenly, in his first case, he’s at the third step of a fourstep progressive discipline case facing a five-day suspension. But here we are.
What about the mystery of that day? There was no mystery. Kevin’s back was acting up. There was a very large
patient– it’s undisputed this was a rather obese person– who needed to be moved. He wasn’t neglecting his
duties. He was looking for someone to assist.
And please remember in considering the evidence that, on past occasions, his supervisor, Nurse Martinez, the
supervising nurse, had allowed him to look for help on prior occasions: people helping where the two of them
would lift or where another person did all of the lifting on one of these days. So, we ask you to bear that in mind.
A couple of other things: One, the labor agreement here contains an important provision that says the hospital
shall not require employees to perform unsafe work. We ask you to bear that in mind in determining whether the
order that Nurse Martinez gave was reasonable or, perhaps to put it differently, whether Mr. Hyer’s politely
declining to do it all by himself at risk of injury to his back, whether that was unreasonable. We submit it was
not. And therefore, there isn’t just cause here.
The other point we want to alert you to is that Kevin is the steward. And his supervisor, Ms. Martinez, makes no
secret of her dislike of the union. She finds Kevin’s actions in the weekly meetings to discuss grievances to be a
waste of time. Now, we don’t know what went through her mind on the morning of February 15, but we know
she didn’t like the union. And then we know that Kevin was the face of the union on this surgical ward.
And when she finally drew the line and said, “Lift this patient or punch out,” she confronted him with a choice.
And we think she wasn’t really looking for a solution, but was looking for a confrontation. So we’re going to ask
you, in this case, please, Mr. Arbitrator, to find that there wasn’t just cause.
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But even if you think there was just cause, to look at the progressive discipline issue and conclude they have
jumped, if not one, two steps in the progressive discipline system and that the grievance should be sustained for
that reason as well. Thank you.
(T) Thank you, very much.
(TRUE) OK, we’re ready for the employer’s case. Are you prepared to call your first witness?
(DAVIS) I am. The hospital would like to call the grievant, Kevin Hyer.
(WHITEHEAD) I object, Mr. Arbitrator. You said at the start of this that it’s their burden. They have
management witnesses. Let them put on their case. I think it’s wrong to use the grievant as part of their case
against the grievant.
(T) Any response to that?
(D) Yes. He’s here. He’s obviously available and able to testify. I get to determine the order of my witnesses and
how to present my case. And there’s nothing to prevent the union from calling him again in their case, if I don’t
cover what they were going to cover with him.
(T) Well, let me ask you a question. Is the union prepared to call the grievant as a witness in this case?
(W) Yes.
(T) Well, here’s what we’ll do. And I’m not going to allow the hospital to call the grievant as a witness in their
case- in- chief. But if the union doesn’t call him as a witness when they present their case, you’ll have the right to
do so.
(D) OK, Mr. Arbitrator.
(T) All right? Let’s proceed with your first witness.
(D) Yes. The employer would like to call Olivia Martinez.
(T) Up here, please, Ma’am.
We’re going to swear you in, if you’ll raise your right hand. Do you swear and affirm that the testimony you are
about give is the truth, the whole truth, and nothing but the truth?
(MARTINEZ) Yes, I do.
(T) Thank you. And then, state your name, please.
(M) My name’s Olivia Martinez, M- A- R- T- I- N- E- Z.
(D) And Ms. Martinez, by whom are you employed?
(M) Nittany Regional.
(D) And in what capacity?
(M) I am the charge nurse for the surgical unit on 4 East.
(D) And is 4 East where the grievant works?
(M) Yes.
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(D) And how long you’ve been a supervisor on 4 East?
(M) I have been Kevin’s supervisor for two years now.
(D) OK, and during those two years that you’ve been Kevin’s supervisor, has he, on a regular basis, been called
upon to move patients from gurneys to beds?
(M) Yes, it’s a daily occurrence on 4 East. We do it all the time.
(D) So when you say we, does that include both the grievant and the other registered nurses on the floor?
(M) Correct. Yes.
(D) OK. Before February 15, was there ever an occasion where Kevin refused to move a patient?
(M) Yes. He oftentimes complains about his back, so he’s always looking for someone to move a patient for him.
(D) OK. And when he complains about his back, what, if anything, have you done in response to those
complaints?
(M) Well, because of his considerable complaining and whining about his back, he usually asks me if he can find
someone else to move a patient. If he can do it relatively quickly, I have no problem. However, if he doesn’t do it
in a timely manner, I really redirect the work.
(D) Has he ever provided you with any documentation from a doctor: a doctor’s note, doctor report, or anything
concerning his alleged bad back?
(M) No, I’ve never received anything like that.
(D) And has he ever processed through you or any other management personnel at the hospital any request for
an accommodation to an alleged back condition?
(M) I’ve never received or known that he’s done anything formally. Like I said, he just informally requests for
another co-worker or peer of his to do the work for him.
(D) OK. Before the incident that leads us to be here today, which occurred, as I understand it, on February 15,
did you ever have an occasion to discipline the grievant for his work performance?
(M) Prior to this incident, in the past two months, I have verbally counseled him on two occasions for two
incidents, the first being that he takes overly long breaks and the second on not completing his assignments in a
timely manner.
(D) All right, tell us first about the overly long breaks, what was involved and about your discussion with him,
too.
(M) Sure. With overly long breaks, we in the unit usually take 10-minute breaks. Kevin seems to think that that
doesn’t apply to him and that he can take breaks as long as he wants.
And he takes very many in a day. Oftentimes, when he’s taking these breaks, he’s stopping in the middle of an
assignment that he’s doing. And he’s off in corners joking and socializing and laughing with his peers.
(D) OK. Now he’s the shop steward for your floor, correct?
(M) Yes, he is.
(D) And how can you tell that he’s not engaging in union activity when he’s taking these overly long breaks?
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(M) Well, I just feel that, if he really was doing that, that he wouldn’t be laughing. He wouldn’t be giggling. And
he would do it in downtime, not when we’re in the middle of something. It would be legitimate.
(D) And you don’t have any animosity toward Kevin because of his position as a union steward, correct?
(M) You know, I may not like unions, but I would really never do anything illegal to interfere with them.
(D) On that first occasion, did you have an opportunity to discuss that with Kevin?
(M) Yes, I did. I did pull him aside and I told him what the rules were here in the unit and about his breaks. And
I told him that this was unacceptable.
(D) And did you consider that a step in the disciplinary process?
(M) Yes, I did, because I verbally warned him.
(D) OK. Now let’s turn our attention to the second incident involving not completing work in a timely manner.
Approximately, when did that occur?
(M) This was about three weeks ago. We had a patient who was in a very narrow gurney that needed to be
moved immediately. And, again, I saw him running all over the place looking for someone to move the patient
for him. And so I told him, once again, to move that patient.
(D) OK. And as a result of that incident, did you have an occasion to discuss that with Kevin?
(M) Yes, I did.
(D) And did you make any notes of that discussion?
(M) Yes, I did. I made my own notes while I was verbally counseling him.
(D) OK. I have what I’ve marked as Employer Exhibit 1. Can you identify that, please?
(M) Yes, these are the notes that I took from three weeks ago.
(D) OK, about your discussion with Kevin?
(M) Correct.
(D) OK. I move the admission of Employer Exhibit 1.
(TRUE) Any objection?
(WHITEHEAD) No, let’s admit it.
(DAVIS) And did you issue him an actual written warning for that incident?
(MARTINEZ) I did take my notes. I told him that I was taking notes. He knew when I was counseling him I
actually meant for it to be a second step, since I had had a previous discipline discussion with him two months
ago. So yes, I did mean for it to be that.
(D) OK. Now I’m going to direct your attention to the day of February 15. Can you tell the arbitrator what
happened that day with regard to the grievance?
(M) Sure. I was coming down from a charge nurse meeting. When I came down onto the floor, I noticed that
Kevin was running up and down the hall looking for someone to move his patient.
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Now his patient was a very large patient. It was a patient who had just come down from the OR from a post-lap
band procedure. And the patient needed to be moved immediately because I did receive a page letting me know
that they needed all the gurneys back in the OR.
So when I had asked him to move that patient, again, with lots of complaining and moaning and whining, he said
that he didn’t want to move the patient and that he was looking for someone to move the patient for him. And so
I, again, asked him to move that patient now, that we were wasting time and this has to be done now.
(D) Did you tell Kevin the consequences if he did not move that patient?
(M) Yes, I did. You know, at that point, I was very frustrated. We were short-staffed. When I just said, “Listen,
you’re either going to move that patient or take a five-day suspension.”
(D) And what was his response to that?
(M) Well, he felt that his safety was in danger: that he didn’t want to do it. And so he decided to clock out
instead. And he told me that he would go through the union process to do what he needs to do. And I said that
was fine, that all we need to care about is patient care. And if that’s his response, then he can leave.
(D) So he did not move the patient. And, in fact, he punched out and went home. Is that right?
(M) Yes.
(D) OK. Now, as a result of that incident, did you make a recommendation to human resources about what level
of discipline you thought was appropriate for the grievant in that situation?
(M) Yes, I did. And now that I think about the situation and how things really played out, it should’ve been a
termination. I mean, he clearly did not follow my direction as his charge. And because of that, he should have
been terminated.
(D) But you recommended a five-day suspension?
(M) I did.
(D) And that’s, in fact, what the grievant received, correct?
(M) Yes, correct.
(D) No further questions.
(TRUE) All right. Cross-examine?
(WHITEHEAD) Thank you. Ms. Martinez, I’m Paul Whitehead, counsel for the union. You don’t like unions, do
you?
(MARTINEZ) Well, it’s not that I don’t like unions, I just feel that they don’t belong in a health care setting. I
mean, the nurses are here to deliver top- quality patient care and not to worry about some silly little rules in a
book.
(W) Well, if you don’t like health care unions, who in your ward represents the union that you think doesn’t
belong there?
(M) Well, Kevin does.
(W) Uh-huh. And I believe, on direct, you said that Kevin has a little union process by which, I think, you meant
the grievance procedure. Are you required to meet with Kevin in the grievance procedure?
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(M) Yes, we have weekly meetings where Kevin comes in and gives me a list of a million and five complaints he
has. And, you know, don’t get me wrong, two or three are legitimate. But it’s really a waste of time. I mean, we
should be on the floor.
(W) So you actually resent his activities as a union steward.
(M) No, I don’t resent the time. I just feel that we could better use our time on the floor dealing with our patients,
not in a room talking about his complaints.
(W) I see. Let’s turn to his back. You’ve known for a long time that he has, occasionally, a bad back, correct?
(M) Right. So he says.
(W) So he says? Have you had any occasion to disbelieve him?
(M) Well, it’s not that I don’t believe him. I just feel that Kevin really uses that as an excuse to get out of work. I
mean, I’ve been working with him for two years now. And I think I can tell at this point when he doesn’t want to
do the assignments I give him to do.
(W) Well, other than the two alleged disciplines, which we’ll come to in a minute, have you ever written him up
for faking a back injury?
(M) I’ve never written him up. But, like I said earlier, I did verbally counsel him on not completing assignments
in a timely manner.
(W) We will come to that. Have you ever asked for medical documentation from him?
(M) No, he’s never given me anything.
(W) Let’s look at each of those two alleged prior disciplines. The first was called a “verbal counseling,” I
believe, for an excessive break, right?
(M) Yes.
(W) Do you know whether you gave anything in writing to Kevin …
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